The following papers (e-filed document nos. 22-54) were read on (1) the motion by the plaintiff for an order transferring an action currently pending in Supreme Court, Nassau County, entitled Vigorito, Barker, Patterson, Nichols & Porter, LLP, John Barker, Gary W. Patterson, Jr. and Dylan Braverman v. Todd E. Gilbert, under Nassau County index no. 609711/2020, and consolidating that action with this action in accordance with CPLR 602 (sequence no. 1); and on (2) the cross-motion by the defendants for an order dismissing the complaint in accordance with CPLR 3211 (a) (4) (sequence no. 2). Motion Sequence No. 1 Notice of Motion-Affirmation-Exhibits (1-5) Reply Affirmation and in Opposition-Exhibits (1-4) Motion Sequence No. 2 Notice of Cross-Motion-Affirmation in Support and in Opposition-Exhibits (A-I)-Affidavit Affirmation in Opposition-Exhibits (1-4) Upon reading the foregoing papers, it is ORDERED the motion by the plaintiff is denied (sequence no. 1); and it is further ORDERED the motion by the defendants is granted (sequence no. 2), and the complaint is dismissed. Plaintiff, a former equity partner of defendant law firm, Vigorito, Barker, Patterson, Nichols & Porter, LLP, sues the firm and three of its partners alleging breach of contract, breach of implied covenant of good faith and fair dealing, and breach of fiduciary duty. Plaintiff commenced the present action on September 10, 2020, by filing a summons with notice (Westchester Action). Four days later, on September 14, 2020, defendants commenced an action against plaintiff in Supreme Court, Nassau County, entitled Vigorito, Barker, Patterson, Nichols & Porter, LLP, John Barker, Gary W. Patterson, Jr. and Dylan Braverman v. Todd E. Gilbert, under Nassau County index no. 609711/2020, by filing a summons and complaint (Nassau Action). According to the affidavit of service, defendants herein, who are plaintiffs in the Nassau Action, effectuated service of the summons and complaint upon plaintiff herein, who is the defendant in the Nassau Action, on the same day the Nassau Action was filed — September 14, 2020. The complaint in the Nassau Action alleges causes of action for, inter alia, breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. On September 15, 2020, according to the affidavit of service, plaintiff effectuated service of process of the summons with notice in the Westchester Action upon the defendants. On October 5, 2020, defendants filed a demand for a complaint. On October 6, 2020, plaintiff filed a complaint and, on the following day, October 7, 2020, plaintiff filed various exhibits to his complaint. Meanwhile, on October 6, 2020, plaintiffs in the Nassau Action moved for an order removing the Westchester Action and consolidating same with the Nassau Action. This motion is presently sub judice in Supreme Court, Nassau County. Two days later, on October 8, 2020, plaintiff in the Westchester Action moved for an order removing the Nassau Action and consolidating same with the Westchester Action (motion sequence no. 1). One day later, on October 9, 2020, defendant in the Nassau Action moved for, among other things, an order dismissing the Nassau Action upon the grounds that a prior action is pending in Westchester County (CPLR 3211 [a] [4]). This motion is presently sub judice in Supreme Court, Nassau County. On October 21, 2020, defendants in the Westchester Action moved for an order dismissing the Westchester Action upon the grounds that a prior action is pending in Nassau County (CPLR 3211 [a] [4]) (motion sequence no. 2). For clarity purposes, the court addresses the motion by the plaintiff and the motion by the defendants in reverse order. Motion Sequence No. 2 Motion by the Defendants for Dismissal Pursuant to CPLR 3211 (a) (4) CPLR 3211 (a) (4) provides that a dismissal of an action may be granted where “there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” Dismissal is not mandatory under CPLR 3211 (a) (4) inasmuch as the court is vested with broad discretion to “make such order as justice requires” (CPLR 3211 [a] [4]; Whitney v. Whitney, 57 NY2d 731, 732 [1982]). However, dismissal is appropriate where “there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same” (Jadron v. 10 Leonard St., LLC, 124 AD3d 842, 843 [2d Dept 2015]). Although courts have rejected a rigid application of the first-to-file rule especially where, as here, the cases are filed in proximity of one another (see L-3 Communications Corp. v. SafeNet, Inc., 45 AD3d 1, 7-8 [1st Dept 2007]; Reckson Assoc. Realty Corp. v. Blasland, Bouck & Lee, 230 AD2d 723, 725 [2d Dept 1996]), a court may still consider chronology a factor in determining whether dismissal pursuant to CPLR 3211 (a) (4) is appropriate (see Roberts v. 112 Duane Assoc. LLC, 32 AD3d 366, 368 [1st Dept 2006]; Certain Underwriters at Lloyd’s, London v. Hartford Acc. & Indem. Co., 16 AD3d 167, 168 [1st Dept 2005]). Pursuant to CPLR 304, an action is commenced by either the filing of a summons with notice or a summons and complaint. The Second Department has explained that, in the context of motions to dismiss pursuant to CPLR 3211 (a) (4), a summons served with notice but without a complaint does not constitute “another action pending” (see Wharton v. Wharton, 244 AD2d 404, 405 [2d Dept 1997]; Sotirakis v. United Servs. Auto. Assn., 100 AD2d 931, 931 [2d Dept 1984]; John J. Campagna, Inc. v. Dune Alpin Farm Assoc., 81 AD2d 633, 634 [2d Dept 1981]). Here, plaintiff commenced the Westchester Action on September 10, 2020, by filing a summons with notice. Four days later, on September 14, 2020, defendants herein commenced the Nassau Action by filing and serving a summons and complaint. One day later, on September 15, 2020, plaintiff herein effectuated service of process of the summons with notice on defendants in the Westchester Action. Plaintiff, however, did not file nor serve a complaint in the Westchester Action until October 6, 2020, and did so only after a demand for a complaint was made by defendants. Thus, within the meaning of CPLR 3211 (a) (4), the Nassau Action was commenced before the Westchester Action (see Wharton, 244 AD2d at 405; Sotirakis, 100 AD2d at 931; John J. Campagna, Inc., 81 AD2d at 634). Notwithstanding the above, since the actions were filed in proximity of one another, the court must consider which forum has the most reason to hear the case (see San Ysidro Corp. v. Robinow, 1 AD3d 185, 186 [1st Dept 2003]). This analysis is similar to that employed in deciding a motion predicated on forum non conveniens (see Flintkote Co. v. American Mut. Liab. Ins. Co., 103 AD2d 501, 506 [2d Dept 1984], affd. 67 NY2d 857 [1986]). Here, although each party accuses the other of gamesmanship, the record is devoid of competent evidence demonstrating such accusations. The Partnership Agreement (Agreement) provides, in relevant part that: “Each partner hereby (a) agrees to the exclusive jurisdiction of any state court within Nassau County or Westchester County with respect to any claim, controversy, or dispute of any kind between the Firm and any present or former Partner or Partners, or between or among any two or more present or former Partners, arising out of or relating to this Agreement, or any claimed breach of either of them.” Thus, it cannot be said that either Nassau County or Westchester County is an inconvenient forum. In any event, the Agreement further provides that each partner “waives any objection based on forum non conveniens and waives any objection to venue of any such suit, action or proceeding.” Notwithstanding same, defendants established, and plaintiff does not refute, that the majority of the documents and witnesses central to the allegations in both complaints are located in Nassau County. Thus, venue is proper in Nassau County. The court next addresses whether (1) there is a substantial identity of the parties, (2) whether the actions are sufficiently similar, and (3) whether the relief sought is substantially the same to warrant dismissal under CPLR 3211 (a) (4). First, a substantial identity of the parties exist “when at least one plaintiff and one defendant is common in each action” (JPMorgan Chase Bank, N.A. v. Luxama, 172 AD3d 1341, 1342 [2d Dept 2019]). Second, in determining whether the actions are sufficiently similar, a court considers whether the pleadings in both actions demonstrate that they are both based on the same contract (see JC Mfg. v. NPI Elec., 178 AD2d 505, 506 [2d Dept 1991]). Last, in determining whether the relief sought is substantially the same, “[i]t is not necessary that the precise legal theories presented in the first action also be presented in the second action” (Dec v. BFM Realty, LLC, 153 AD3d 497, 497 [2d Dept 2017] [internal quotation marks omitted]). Additionally, “if the only difference between the two actions is that the relief demanded differs but could be demanded in either action, the motion to dismiss should be granted” (Harvard Steel Sales, LLC v. Bain, 2020 NY Slip Op 32045[U], *1, *7 [Sup Ct, New York County 2020], citing Falzerano v. DeLuca, 154 AD2d 431 [2d Dept 1989]). To warrant dismissal, “[t]he critical element is that both suits arise out of the same subject matter or series of alleged wrongs” (Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG, 110 AD3d 783, 784 [2d Dept 2013] [internal quotation marks omitted]). Here, both actions involve the same parties, arise out of the same subject matter — breach of the Partnership Agreement — and seek monetary and declaratory relief. In addition, plaintiff may pursue his claims in the Nassau Action (see Harvard Steel Sales, LLC, 2020 NY Slip Op 32045[U] at *7). Accordingly, defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (4) is granted (see Simonetti v. Larson, 44 AD3d 1028, 1029 [2d Dept 2007]). Motion Sequence No. 1 Motion by the Plaintiff for Consolidation Pursuant to CPLR 602 Based on the foregoing, plaintiff’s motion is denied as academic. Dated: December 21, 2020
